Short Take: The LA Times’ Balancing Act

It might be considered a bit snarky to say that the Los Angeles Times published an op-ed by Laura Beth Nielsen in response to one by Ken White, but that may very well be the case. Newspapers try to present balance, both sides of the coin, which is generally a good thing, with one proviso: the other side of balance isn’t complete, utter, total nonsense.

There are good arguments to be made on either side of this issue. It’s unfortunate that the author of this op-ed is unfamiliar with any of them.

–SHG, Newsday, 1984

But what of Nielsen, Ken’s counterweight? Her opening sentence foreshadows the problem:

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates.

The boundaries of law bear no relation to sociology, so what this has to do with her inability to explain law to undergrads is unclear. What is clear is that she writes for a non-lawyer audience, and attributes to herself the title “legal scholar.” Putting aside her pretentiousness, it’s a set-up. She argues from authority, so she must know what she’s talking about. She teaches undergrads! And it’s a struggle!

Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech.

Of course her undergrads can’t grasp why. They’re undergrads, with mush for brains. That’s why they’re in college. That’s why Nielsen is paid the big bucks, to teach them why, to explain in each of her examples the specific legal bases for why, despite the First Amendment, there are very specific exceptions. And it might behoove her, if she was to do her job, to add in that vague characterizations like “racist and sexist speech” are the sorts of things that undergrads aren’t inclined to question, because they’re undergrads and too clueless and indoctrinated to have the capacity to grasp what’s wrong with the wildly meaningless assumptions.

That, Laura Beth Nielsen, is your job as “a sociologist and legal scholar.” So what do you teach them?

The typical answer is that judges must balance benefits and harms.

Such a reasonable answer, but for one problem. It’s wrong. Not just a little wrong, but completely wrong. The constitutionality of speech is not decided based on a balancing test, and taking Nielsen at her word, that she’s a “legal scholar,” she doesn’t get the benefit of being ignorant. No, she’s a liar.

And in kicks the sociologist side of the argument:

If judges are asked to compare the harm of restricting speech – a cherished core constitutional value – to the harm of hurt feelings, judges will rightly choose to protect free expression. But perhaps it’s nonsense to characterize the nature of the harm as nothing more than an emotional scratch; that’s a reflection of the deep inequalities in our society, and one that demonstrates a profound misunderstanding of how hate speech affects its targets.

Insert any platitude that works for you, “speech is violence,” “words hurt as much as bullets,” HATE SPEECH KILLS!!!

But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

Whenever you read the words, “free speech absolutists,” the red propaganda flag should go up. Whereas balancing is warm and fuzzy, absolutism is harsh and inflexible. And much as she’s right that people, whether “traditionally marginalized groups” or anyone else, will suffer for the freedom to speak words that offend someone, that is indeed the price of free speech. And when those same people speak back, offending those with whom they disagree, usually by calling them racist or sexist because they only possess blunt weapons, they too get to utter their hateful words.

While balance is an excellent way to hash out the varying viewpoints on controversial issues, lying about the law is not. Or maybe Nielsen isn’t lying, and she’s just that ignorant.

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49 comments on “Short Take: The LA Times’ Balancing Act”

If you read the “Legal Experience” section of her CV, posted at the Northwestern Sociology department’s faculty page for her, you’ll find one small piece of the explanation for Nielsen’s limited understanding of the law as it actually works. Four experiences are listed: three summer internship/clerk positions, and one gig as “Litigation Consultant/Expert Witness.” I’m sure she’s smarter than me, what with the Ph.D. and all, but by the time I finished clerking and started practicing the only real piece of solid legal knowledge I had was “Always be nice to the judge’s clerk.” There was very little call for me to give expert testimony sharing that knowledge.

She’s legal (I assume, though I don’t know what that might mean), and she’s a “Research Professor at the American Bar Foundation,” so she either researches booze or something lawish, which makes her a scholar.

Anyhow, being a scholar, even of the law, doesn’t mean you know what you’re talking about. Hell, I’m a lawyer, but if I started mouthing off about constitutional limits on riparian rights and listing my relevant credential as a law degree and a few bar admissions, who’d question my relevant knowledge – except perhaps someone who knew something about constitutional limits on riparian rights.

Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

As opposed to legal regimes where the state is given latitude to define and punish offensive speech, in which case it can choose which groups to marginalize and cause to suffer, without being necessarily bound by tradition.

Admittedly, it’s one of the least savory free speech decisions handed down, but isn’t that essentially the punchline to Chaplinsky v. New Hampshire?

“It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

(IANAL, but I have no idea what guidance one is supposed to take from this ruling, other than ‘fighting words’ being another of those First Amendment exceptions the judiciary knows when it sees….)

This is like the sovereign citizens who argue that John Bad Elk is good law. The government argued that the Chaplinsky balancing test should be used in United States v. Stevens. Mind you, Chaplinsky was an outlier, even in its day, but to the extent it suggested that a balancing test was the way to determine free speech, Stevens expressly rejected the balancing test.

So by falling back on an old quote that has been expressly rejected, you’ve not only failed to make your point but potentially made people stupider. Why do you want to make people stupider? Since you put in the effort to quote Chaplinsky, why didn’t you put in the effort to learn that it had since been rejected? Or were you deliberately trying to make people stupider because Chaplinsky served your purpose, and you couldn’t care less about making people stupider, as long as it helped your feelz?

I wonder if “snowflake” is gonna make the restricted list after the legislatures and courts tune up the restrictor valve?

Anyway, who knew the editors at the LA Times wouldn’t require a footnote when one of their contributors used the term “snowflake”?

On the bright side she did use “perhaps”:

“Instead of characterizing racist and sexist hate speech as “just speech,” courts and legislatures need to account for this research and, perhaps, allow the restriction of hate speech as do all of the other economically advanced democracies in the world.”*

So there’s that at least. And hey, give her a brake….Landing outside of Chicago after studying at Berkley is sure to fuck anybody up just a little bit. Might have something to do with the “snowflakes” not melting or something?

Who knows? But I am glad she used “perhaps”, SO SHE WILL have plenty of time to consider the nuanced details before the “restrictor” list comes out and is signed into law.

Heck, if she plays her cards right, Chelsea might put her on the bench.**

*the exclusion of all the “fun” places in the world that also restrict “hate speech” makes me want to cry.

“Free Speech Absolutist” That turn of phrase baffles me. Too bad she doe not define it, or better still, name a self-identified Free Speech Absolutist. Is it a person who says whatever they want to say, or a person that believes one should be able to say whatever they want to say?

“(T)hese free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.”

I know this is true because I’ve never heard a member of a traditionally marginalized group be hateful to me, except those 8,356 times which don’t count.

I can only imagine that Ms. Nielsen has never done physical labor with or competed in sports against or lived with members of traditionally marginalized groups. They seem to shoulder the burden of hate speech – in fact, they willingly assume the grave responsibility of using it – with few noticeable consequences. They would really get pissed if you said they were marginalized, thinking it had something to do with margarine.

This dystopian vision of the future is why I spend so much time writing about these issues. If it was just them, then let them enjoy their Utopia, good and hard. But there are others, and they deserve better than this.

Playing devil’s advocate, it’s not too hard to see where the idea of ‘balancing’ comes from. As frequently stated, courts ask only if speech falls into narrowly defined exceptions; but is it entirely inaccurate to say that the creation of the existing exceptions was a balancing test? With obscenity in particular, as here we already have a category of speech that is prohibited only on the basis of offense taken by those hearing the speech, it seems as if the courts are saying since the value/offense balance is too extreme there’s an exception. No matter how bad that caselaw is it’s being upheld too.

You’re conflating very distinct issues. One is the creation of a narrowly defined exception to the first amendment, and the second is vague general balancing test of all speech to decide its worthiness of First Amendment protection.

The Supreme Court could craft a hate speech exception to the First Amendment, and the decision as to whether such a categorical exception should exist could well involve a balancing test. But that’s only as to the creation of the categorical exception. Whether any particular speech fell within the exception would not involve balancing, but whether it met the definition of the exception. See the difference?

Comments like this are a big part of why I read your blog every day; small words making a reader face up to an important distinction or definition. I know it’s tedious for you explaining the obvious to the hard of thinking but I’m glad you keep at it.

The distinction that you speak of informs my comment; whether the article is arguing for one or the other. Nielson opens with “We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few.” So the point that seemed unclear to me, could she have speaking to a (misguided) desire to apply the same balancing test that resulted in those to add ‘hate speech’ as one of the categorical exceptions? Now that’s a bad path from the definitions on up, but then if hate speech was an unprotected category, the issue to consider after that is whether the speech falls under it, à la the Miller test- which is far from objective and does resemble a balancing test in making value judgements, but whether it should be called one is a whole different issue . It seems you take the view that she’s advocating to skip all that and argues to simply judge each instance of space on the balance of its harms/merits, but the article seemed more along the lines of presenting a case for a balance that weighs in favor of adding hate speech to the list of exemptions. It doesn’t do that particularly well and it’s a loathsome argument to make for those who value freedom above sad feelz, but it’s keeping with the legal balancing test of the creation of other exempted categories.

You’re trying way too hard to make sense of the nonsensical. It’s not that complicated. Her reference to a balancing test had nothing to do with arguing for a new categorical exception, not that it would be conceivably possible, but it doesn’t matter as that wasn’t remotely what was said. There is no balancing test.

I saw what you did there, you old softie. But on the other hand, I can’t make any sense out of Jon’s comment. It’s not clear whether he’s just a terrible writer or his head is full of mush (or both), but I give you credit if you understood what he’s trying to say. It was pure gibberish to me.

I was a bit harsh originally, which I shouldn’t be. I didn’t really understand what he was trying to say either, which is part of what annoyed me, but it occurred to me that it was essentially the same point repeated in less comprehensible language.

In her column, Professor Nielsen identified the problem with restricting hate speech:

“Consider also the protections afforded to soldiers’ families in the case of Westboro Baptist anti-gay demonstrations. When the Supreme Court in 2011 upheld that church’s right to stage offensive protetsts at veterans’ funerals, Congress passed the Honoring America’s Veterans’ Act, which prohibits any protests 300 to 500 feet around such funerals. (The statute made no mention of protecting LGBTQ funeral attendees from hate speech, just soldiers’ families).”

Hate speech against the people we like–bad. Hate speech against the people we don’t care about–meh.

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Scott H. Greenfield

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